Lawyers for Britain logo


Staying in the EU Single Market after exit

Part 4: Requirement to continue to allow Free Movement of Persons

The provisions of the EEA Agreement on the free movement of persons are quite clear. Article 28 of the EEA Agreement on free movement of workers is identical to Article 45 of the TFEU, and imposes the same requirement to admit any EU national who comes to the UK to take up a job. In addition, the Annexes of the EEA Agreement incorporate the EU Directives which confer wider rights, both the right to come to the UK to look for work, and rights relating to equal treatment in social security, pensions and other matters. Essentially, only the political rights to vote in European Parliament and local government elections are restricted to EU as distinct from EEA citizens.

Moving from full EU membership but staying inside the EU Single Market under the EEA Agreement would not give back to the UK any effective power to control its own borders with regard to immigration from the EU, or indeed immigration of third country nationals such as dependents who derive their right to enter from EU nationals.

A number of commentators have however suggested that Article 112 of the EEA Agreement would give the UK a right to impose an “emergency brake” on immigration from the EU.  This is not correct. Such suggestions flow from a misunderstanding of the terms and purposes of Article 112.

Article 112 is not specifically related to free movement of persons. It provides a general right to take “safeguard measures” if “serious economic, societal or environmental difficulties of a sectorial or regional nature liable to persist are arising” (emphasis added). Any safeguard measures are meant to be strictly necessary, temporary and as limited as possible in their scope. As provided by Article 112(2):
“2. Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation. Priority shall be given to such measures as will least disturb the functioning of this Agreement.”
The key point to note about Article 112 is that it relates to “difficulties of a sectoral or regional nature”.  Therefore it would not extend to measures taken to restrict immigration into a whole large country such as the UK. Some commentators who have referred to this provision cite the fact that it has been invoked by Liechtenstein to justify certain restrictions on immigration into that small country, after immigration reached very high levels indeed compared with Liechtenstein's small population. While it is possible to describe a difficulty affecting the whole of tiny Liechtenstein as “regional”, such a description could not apply to the UK.  Nation-wide safeguard measures under Article 112 of the EEA Agreement would not be available to the UK unless we were willing flagrantly to breach the treaty.

It should also be noted that taking safeguard measures under Article 112 then gives rise to a right of the other parties under Article 114 to take “proportionate rebalancing measures” in response. It seems certain that any attempt by the UK to invoke Article 112 in relation to free movement of persons would be seen as an act of bad faith and as abandoning the treaty obligations the UK would have assumed by staying in the Single Market, and would provoke a retaliatory response from the EU.

Next: Part 5: Single Market and effect on international trade